JUDGMENT

Radha Krishna, J - This is the creditors' application in revision under Section 75, proviso (1), against an appellate order of the District Judge of Lucknow. The applicants made an application praying that the opposite parties Nos. 2 and 3 and their brothers, opposite-parties Nos. 1 and 4, be adjudged insolvents. This application was made under Section 9, Provincial Insolvency Act. Here it is necessary to state that the family of opposite parties Nos. 2 and 3 owned two houses situated in Sarojini Devi Lane, city Luck-now. On 16th December 1936, a voluntary partition of that property was carried into effect by which the two houses were divided in six shares, one each for opposite parties Nos. 1 to 4, and one each for the two minor brothers of opposite parties not parties to this application. In appeal the application against opposite parties Nos. 1 and 4 was withdrawn and pressed only as regards opposite parties Nos. 2 and 3.

2. The two Courts below have dismissed the application. The grounds of the application were firstly that a voluntary partition had been carried into effect between the opposite parties Nos. 2 and 3 and their brothers within three months before the presentation of the petition with an intention to defraud the creditors, and secondly that on 12th January 1936, opposite parties Nos. 2 and 3 had sold their sharers in the two houses to their mother for a consideration of Rs. 1000. Out of the sale consideration Rs. 600 and Rs. 150 were paid to Lachhman Prasad and Ganga Charan, creditors. The object of this sale was to prefer two creditors over others. A creditor is entitled to make an application to have a debtor declared insolvent under conditions mentioned in Sub-clauses (a) to (c) of Clause (1) of Section 9. It is admitted that the conditions laid down in Clauses (a) and (b) have been fulfilled and the only question in controversy was whether any act of insolvency had occurred within three months before the presentation of the petition. The two acts of insolvency alleged were the partition dated 16th December 1936, evidenced by Ex. 1, and the sale deed dated 12th January 1937, evidenced by Ex. 2. Acts of insolvency are defined in Section 6, Provincial Insolvency Act. The partition between the brothers of the two family houses on 16th December 1936, cannot be treated as a transfer with intent to defeat or delay the creditors. So far as the debt due to the applicants is concerned, it has been found that it had been incurred by opposite parties Nos. 2 and 3 only on account of a new business started by them. The share of other brothers was by no means liable for the payment of this debt. The share of opposite parties Nos. 2 and 3 being alone liable, the partition of 1936 did not prejudice the creditors of opposite parties Nos. 2 and 3 in any way.

3. Reliance was placed in the Court below, as well as in this Court, on a decision of the Nagpur High Court in Bajirao v. Daulatrao (1930) 17 AIR Nag 215. This was a case where the father in a joint Hindu family had allowed a partition between himself and his sons. The interests of the sons were liable for the debt of the father's creditors and on that footing it was held that transferring the share by partition from the possession of the father into the possession of the sons amounted to a transfer with an intent to defeat or delay the creditors. That case has obviously no application to the facts of the present case. As regards the sale deed dated 12th January 1937, it appears to me that the contention in the two Courts below was that the said transfer fell within Clause (b) of Section 6 but that clause is excluded on the admitted case of the creditors, that out of the consideration money Rs. 750 had been paid to two of the creditors. Clause (b) of Section 6 in my opinion would apply only to those cases where transfer is intended to defeat all the creditors as a whole. It has no application to the case where the transfer has the effect of preferring some credi